In a state where contributory negligence applies (even 1% fault) is there any chance/sense in pursuing premises liability case?

Waldorf, MD | April 4, 2013 6:01am

Even if property owner had structural defect, proven to have been there for some time, and still existing after incident? Is there any retort that could supercede the contribuory negligence argument (i.e., building code/premises violations), lack of warning/signs indicating potential hazard, (last chance rule)? Can these cases be appealed if such verdict is made? And would praying jury trial be the better venue?

Your question is not very clear. if you are asking if there is a structural defect in property and that lead to you being injured, and the deft claimed you were partly at fault, would you be better off with a jury hearing he case, and can an adverse judgment be appealed?

The question as to whether a judge or jury would be better, is difficult. it depends upon the judge and the types of jurors in the juror pool. You may not have a choice as the deft may demand jury.
I dont know the way comparative fault is treated in your state. In Ca where I practice, if you are found 50% at fault, your damages will be sliced by 50%. Are you inferring that in your state if you are found at all at fault, you automaticlly lose? Best check with local counsel
Appeals are costly and more are lost than won.

As you know, Maryland currently is a "contributory negligence" state, which means that if you are 1% at fault you could be barred from receiving justice for your damages. There is currently a case before the Court of Appeals (MD's highest court) which addresses whether MD should join the 46 other states and switch to "comparative negligence". There are many questions surrounding this case if the Court rules in favor of switching; i.e., will the change in law apply to prior injuries or only to ones after the date of the Court ruling. I recommend you contact a lawyer who understands the current state of MD law to get guidance.

Your post poses many questions which require much investigation to properly answer. You need to consult a local personal injury attorney with all the facts and let the thoroughly investigate the incident and advise you accordingly.

Call for a free consultation at 727-937-1400 or visit us on the Web at www.serviceandjustice.com.

Your question is confusing: have you already filed suit and lost on the contributory negligence defense? Why are you talking about appeals and praying jury trial at the same time, unless this was a small claims matter (suit for under $5,000.00) and you lost in District Court, and now want to appeal to the Circuit Court? If suit has not been filed, then the choice of proceeding in district versus circuit court involves weighing a number of factors. District court has no jury trials, and the limit of your claim is $30,000, but there is a procedure whereby you can document your medical bills and injuries simply by submitting your medical bills and record without the testimony of a doctor. If you start in Circuit court in order to claim more than $30,000 or because you want a jury trial, you would have to pay your doctor's expert witness fees to appear and testify ($3,000-$5,000 or more), and those costs are not recoverable as part of your damages. An appeal after losing on the contributory negligence defense can be costly and difficult to reverse, unless it is of the small claims variety on appeal from district to circuit court, in which case you simply get a new trial. Whether the defenses of contributory negligence and assumption of the risk apply to your case depends on a detailed analysis of the facts and circumstances of what happened. Usually, in slip and fall cases, assumption of the risk is the common defense, because the plaintiff is alleged to have knowingly walked into an are with a dangerous condition, and tried to pass through, thereby "assuming the risk" that he/she might fail to make it through without falling or getting injured. Building code violations help you establish primary negligence, but say nothing about contributory negligence or assumption of the risk. Lack of warning signs weakens the property owner's claim that you assumed the risk of a known danger (because they could argue you were warned and put of notice), but it does not mean you are not at fault for failing to observe an open and obvious danger and/or having knowledge of it deliberately proceeded to encounter the danger. These defenses come up frequently, and are almost always a factual determination by a judge or jury. The defenses are weak or strong depending on the details. Your question provides none. You need to sit down with a personal injury lawyer and go over all the details.

Seek the assistance of a personal injury attorney in your area who gives free consultations. You need to discuss all details in depth with an experienced attorney who can hash out all of your concerns. Good luck.

The above is general information only and is not legal advice. The information provided does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. I am not your attorney until we sign a retainer agreement.

These sound like jury questions. Whether the property owner was negligent may be a jury question depending on several facts. Contributory negligence is similarly usually a question for the jury. Depending on the specific facts of your case, there will be caselaw directly on point which will determine if the victim is contributory negligent as a matter of law, or if the facts are sufficient that the case can be decided by a jury. Without knowing more specifically what your actual facts are, it's not really possible to say. You will need to call a premises liability attorney in Maryland.

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